SHEIKH ABDUR RASHID VS. ALHAJ AKRAM HOSSAIN AND OTHERS

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SHAWKAT ALI KHAN VS. AHMED ALI AND OTHERS

Case No: Civil Appeal No. 14 of 1998

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Mr. Fazlul Karim,,

Citation: II ADC (2005) 139

Case Year: 2005

Appellant: Sheikh Abdur Rashid

Respondent: Alhaj Akram Hossain and others

Subject: Property Law,

Delivery Date: 2003-03-11

Sheikh Abdur Rashid Vs. Alhaj Akram Hossain and others
II ADC (2005) 139

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
KM Hasan J
Md. Fazlul Haque J

Sheikh Abdur Rashid …………….Appellant
Vs.
Alhaj Akram Hossain and others………………………………..Respondents

Judgment
March 11, 2003.

Code of Civil Procedure, 1908
Section 115
The High Court Division has exceeded its jurisdiction in setting aside the concurrent findings of facts arrived at by the courts below after due consideration of the evidence on record. …. (12)

Lawyers Involved:
Fazlul Karim, Senior Advocate, Instructed by Md Nawab Ali, Advocate-on-Record – For the Appellant.
Mahbubuy Alam, Senior Advocate, Instructed by Md. Aftab Hossain, Advocate-on-Record – For Respondent No.1.
Not represented – Respondent Nos. 2-8.

Civil Appeal No. 14 of 1998
(From Judgment and Order dated 11.8.1997 passed by the High Court Division in Civil Revision No. 765 of 1994)

Judgment:

Md. Fazlul Hauqe J.- This appeal has arisen out of a leave granting order dated 8.1.1998 passed by this Court in Civil Petition for Leave to Appeal No. 1172 of 1997 filed against the judgment and order dated 11.8.1997 passed by the single Bench of the High Court Division in Civil Revision No. 765 of 1994 making the Rule absolute and setting aside the judgment and decree dated 22.4.1993 passed by the learned Subordinate Judge, Bagerhat in Title Appeal No. 170 of 1991 affirming those of dated 21.5.1991 passed by the learned Additional Assistant Judge, Court No. 2 Bagerhat in Title Suit No. 280 of 1991 dismiss­ing the suit.

2. The present respondent No. 1 as plaintiff filed Title Suit No. 501 of 1983 (subsequently) renumbered as Title Suit No. 280 of 1991 in the Court of Munsif, Sadar, Bagerhat for declara­tion that order by Circle Officer (Revenue) Bagerhat in Miscellaneous Case No. 818/1983-84 and the kabala claimed in the said Miscellaneous case is, void, illegal, forged, fic­titious and for permanent injunction restraining the defendant from entering into the suit land and disturbing the plaintiff’s peaceful posses­sion in the suit property contending, inter alia, that the suit land originally belonged to Nepal Chandra Poddar and others, who settled the same in favour of Manindra Nath Datta, and Atul Datta @ Arjun Datta in the first part of Baishak, 1344 B.S. Manindra and Atul @ Arjun used to possess the said land on the basis of the said settlement, Atul @ Arjun died in the year 1370 B.S leaving a widow and a brother Manindra Nath Datta as his heirs. Widow of Atul @ Arjun also died and her share developed upon Manindra. The Title of Manindra in the suit land was confirmed in a sole decree dated 13.6.1981 passed in Title Suit No. 51 of 1979 of the court of Munsif, Sadar, Bagerhat.

3. Manindra Nath Datta sold the suit land to the plaintiff by a registered kabala dated 1.3.1983, who mutated his name vide miscella­neous Case No. 29 of 1983. The defendant appellant taking the plea of wrong recording of the suit land in the S.A. Khatian obtained muta­tion order in his name vide Miscellaneous Case No. 828 of 1983-84 on the basis of a fraudulent document and threatened the plaintiff with dispossession on 5.12.83. Hence the plaintiff filed the suit for the aforesaid reliefs.

4. The present appellant as defendant con­tested the said suit by filing written statement denying the material statements made in the plaint and contended, inter alia, that Atul @ Arjun alone acquired the suit land on the basis of oral settlement from Nepal Chandra Paddar and others, in the 1st part of Baishak, 1344 B.S. and while he had been in exclusive possession of the suit land, he sold 1.20 acres of land to the defendant appellant by a registered kabala dated 25.6.1962. After purchase the defendant mutat­ed his name and his title in the suit land was perfected by his continuous peaceful possession since his purchase. Manindra had never acquired the suit land jointly with Atul @ Arjun and he is also not heir of Atul @ Arjun. The alleged kabala of the plaintiff and the compro­mise decree passed in Title Suit No. 51 of 1979 are fraudulent and concocted. The plain­tiff had/has no possession in the suit land and it is the defendant appellant, who is in possession of the suit land.

5. The learned Munsif on conclusion of hearing of the suit by his judgment and decree dated 24.11.1986 decreed the suit against which the present appellant filed an appeal before the court of District Judge, Bagerhat being Title Appeal No. 42 of 1987 which was eventually heard by the learned Subordinate Judge, Bagerhat, who by his judgment and decree dated 15.5.1990 allowed the appeal and send the suit back on remand to the trial court for disposal after framing issues giving oppor­tunity to amend the plaint and for exhibiting documents according to law.

6. After the suit was send back on remand the same was renumbered as Title Suit No. 280 of 1991 of the Court of Assistant Judge, Sadar Court No.2, Bagerhat but the plaintiff did nei­ther amend the plaint as directed by the Appellate Court nor took any step to paled the son of Atul @ Arjun. The learned Assistant Judge by the judgment and decree dated 21.5.1991 dismissed the suit with the finding that neither of the parties has succeeded in proving the settlement from the original owner without any finding regarding possession although the S.A. record stands in the name of Atul @ Arjun and not Manindra.

7. Being aggrieved by the judgment and decree of the trial Court the plaintiff preferred Title Appeal No. 170 of 1991 in the Court of District Judge, Bagerhat, which was eventually heard by the learned Subordinate Judge, Bagerhat, who by his judgment and decree dated 22.4.1993 dismissed the appeal with the finding, inter alia, that from solenama exhibit (a) of Title Suit No. 51 of 1979 it transpires that Manindra got 0.91 acres of land and the defen­dant Nos. 1 (ka) to 1(ga)and defendant No. 2 got 0.39 acres of land out of the suit land but in fact defendant Nos. 1 (ka) to 1(ga) and defen­dant No. 2 are not the heirs of Atul @ Arjun and they could have no claim over the property of Manindra and Atul @ Arjun. Apart from those exhibit 3(a) shows that .39 acres of land was shown to have been transferred to P.W. 1 who is the brother of the plaintiff which fact shows that to grab the property of Arjun, Manindra Nath filed Title Suit No. 51 of 1979 and obtained fraudulent decree on compromise with defen­dant No. 1(ka) to 1(ga) and defendant No.2 and as such the plaintiff could not get any title by his kabala dated 1.2.83 (exhibit-3).

8. The plaintiff appellant being aggrieved by the judgment and decree of the lower appel­late court in Title Appeal No. 170 of 1991, filed Civil Revision No. 765 of 1994 in the High Court Division of the Supreme Court of Bangladesh, and a learned Single Judge of the High Court Division, by the judgment and order dated 11.8.1997 made the Rule absolute and decreed the suit after setting aside the concur­rent finding of facts arrived at the courts below. The defendant being aggrieved by the said judgment of the High Court Division filed Civil Petition for leave to Appeal No. 1172 of 1997 before this Hon’ble Division and leave was granted in the following terms:-
“Mr. M. A. Wahbab Miah, learned Advocate for the petitioner submits that the impugned judgment is wholly, unsustainable in that the same is based upon a total non-consideration, not only of the findings and reasons of the courts below not to speak of reversing them, and also of the oral and docu­mentary evidence on record. He sub­mits that the High Court Division exceeded its jurisdiction in setting aside the concurrent findings of fact without lawfully reversing them and without any reason.”

9. Mr. Fazlul Karim, the learned Advocate appearing on behalf of the appellant before us submits that the lower appellant court below misconceived the law of evidence regarding certified copy of registered document exhibit­ed without any objection by the plaintiff and that the lower court ought to have found the date of kabala in favour of the defendant No. 1 as it is found from the exhibit-A and from the deposition of D.W. 1. The petition of the defen­dant for mutation dated 25.2.1962, the date of kabla seemed to have been written as 25.2.1964, which is clerical mistake. The learned Advocate submits that without calling for the volume of registered kabala of, the rele­vant time from the registrar and verifying the same the observation and finding of the learned court regarding exhibit-A on the basis of a list of Sub-Registrar and the certified copy of Index cannot be accepted as sustainable in law more so the learned revisional Court did not at all give any finding whether the Index submitted by the plaintiff is the Index of Kabala deeds or of any other kind.

10. Mr. Mahbubuy Alam, learned Advocate appearing on behalf of the plaintiff respondent submits that while dismissing the suit the trial Court as well as the Court of appeal below did not consider the compromise decree dated 30,6.81 passed in Title Suit No. 51 of 1979. The High Court Division committed no error in reversing this judgment and decreeing the suit in consideration of exhibits 5 and 6. The learned Advocate further submits that the trial Court and the court of appeal below having dismissed the plaintiff’s suit without considering the materials on record the High Court Division committed no error in reversing the judgment and decrees of the courts below. The Courts below did not consider the materials on record specially vital document exhibits 5 and 6 and the-High Court Division did not commit an error in decreeing the suit.

11. It appears from the judgment that the learned Assistant Judge by the judgment and decree dated 21.5.1991 dismissed the suit with a clear finding that neither of the parties suc­ceeded in proving the settlement from the orig­inal owner and without any finding regarding possession although the S.A. khatian stands in the name of Atul @ Arjun and not Manindra.

12. Against the said judgment and decree of the trial court the plaintiff preferred Title Appeal No. 170 of 1991 in the court of District Judge, Bagerhat. The said appeal was heard by the learned Subordinate Judge, Bagerhat, who by his judgment and decree dated 22.4.1993 dismissed the appeal with the finding inter alia, that from solenama exhibit 6(a) of Title Suit No. 51 of 1979, it transpires that Manindra got 0. 91 acres of land and the defendant Nos. 1 (ka) to 1(ga) and defendant No. 2 got. 39 acres of land out of the suit land. It is a matter of fact that the defendant’ Nos. 1(ka) to 1(ga) and defendant No. 2 are not the heirs of Atul @ Arjun and they could not have claim over the property of Manindra and Atul @ Arjun. Besides this exhibit 3(a) shows that .39 acres of land was shown to have been transferred to P.W 1, who is the brother of the plaintiff, which fact shows that to grab the property of Arjun, Manindra Nath filed Title suit No. 51 of 1979 and obtained fraudulent decree on compromise with defendant No. 1(ka) to 1(ga) and defen­dant No. 2. The plaint case of the plaintiff is that the plaintiff, Manidra Nath along with his brother Atul @ Arjun had taken settlement from the landlord. Subsequently, the plaintiff has come up with the plaint case that the prop­erty, belonged to Atul @ Arjun, who died leav­ing his wife and the plaintiff (Manindra Nath). The Further case of the plaintiff is that the wife of Atul @ Arjun died therefore, the plaintiff (Manindra Nath) became the 16 annas owner of the suit property. If the plaintiff was a 16 annas owner of the suit property there was no need to have a sole decree in the aforesaid Title Suit with defendant Nos. 1 (ka) to 1 (ga) and defendant No. 2. This story of the plaintiff is absurd. Further, the plaintiff has filed to estab­lish the settlement alleged to have been taken by his brother along with him. Be that as it may the High Court Division has set aside the con­current findings of fact without discussing the evidence on record. The High Court Division has not at all given a finding with regard to the settlement of the land in favour of either Atul @ Arjun and/or Manindra Nath. Whereas the courts below have come to a finding that nei­ther of the parties of the suit has been able to establish the case of settlement of the Atul @ Arjun and Manindra. The High Court Division as it appears has set aside the concurrent find­ing of fact without considering the evidence on record. The High Court Division has not con­sidered the soleh (compromise) decree exhibit-6(a) and/or exhibit-3(a) or exhibit-3. Therefore, we are of the view that the High Court Division has exceeded its jurisdiction in setting aside the concurrent finding of facts arrived at by the courts below after due consideration of the evi­dence on record. Besides there is no finding whatsoever, with regard to the settlement alleged to have been taken by Atul @ Arjun and/or by the plaintiff. Therefore, the courts below rightly dismissed the suit of the plaintiff since the basis of claim of the plaintiff was of settlement and the plaintiff has failed to estab­lish even before us that Atul @ Arjun and/or Manindra Nath had obtained settlement from the landlord. Considering this aspect of the case we are of the view that the High Court Division has committed an error of law in set­ting aside the concurrent finding of facts arrived at by the courts below and decreeing the suit. The suit was rightly dismissed by the courts below and -we are also of the view that the suit is liable to be dismissed.
Accordingly, the appeal is allowed with cost. The judgment and decree of the High Court Division is set aside and the suit is dis­missed.
Ed.

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